The most fundamental problem with guestworker programs, both historically and currently, is that the employer — not the worker — decides whether a worker can come to the United States and whether he can stay.

Because of this arrangement, the balance of power between employer and worker is skewed so disproportionately in favor of the employer that, for all practical purposes, the worker's rights are nullified. At any moment, the employer can fire the worker, call the government and declare the worker to be "illegal."

Otto Rafael Boton-Gonzalez, an H-2B forestry worker from Guatemala, has seen first-hand how this works. "When the supervisor would see that a person was ready to leave the job because the pay was so bad, he would take our papers from us. He would rip up our visa and say, 'You don't want to work? Get out of here then. You don't want to work? Right now I will call immigration to take your papers and deport you.'"

Many abuses, perhaps most abuses of guestworkers, flow from the fact that the employer literally holds the deportation card. One of the most chronic abuses reported by guestworkers concerns the seizure of identity documents — in particular passports and Social Security cards. In many instances, workers are told that the documents are being taken in order to ensure that they do not leave in the middle of the contract.

The Southern Poverty Law Center has received dozens of reports of this practice and has, in the course of its legal representation of workers, confirmed that it is routine. While some employers state that they hold the documents for the purpose of "safekeeping," many have been quite candid in explaining that there is a great risk that workers will flee if the documents are not held. One employer sued by the Southern Poverty Law Center stated in her deposition that the company kept workers' Social Security cards in the office because "if they have their Social Security card, they'll leave."

Juan, a forestry worker, said, "The boss took our passports and kept them. He took them as soon as we arrived from Mexico. We would ask for them and he would always say no. When we got paid, we would want to go cash our pay checks. The boss would say, 'Go talk to the driver and he'll change them for you.' They would not give us our passports to cash our pay checks. They would say that the higher company office ordered them to do this. My passport gives me permission to be here so no one will bother me because I am legal. I cannot prove I am legal if I do not have my passport."

There is no realistic mechanism for workers to recover their identity documents. Numerous employers have refused to return these documents even when the worker simply wanted to return to his home country. The Southern Poverty Law Center also has encountered numerous incidents where employers destroyed passports or visas in order to convert workers into undocumented status. When this happens, there is little likelihood of a worker obtaining assistance from local law enforcement officials. In many jurisdictions, lawyers representing workers advise them to avoid calling police because they are more likely to take action against complaining workers than against the employer.

Living in fear
In other instances, employers have quite explicitly used the threat of calling the U.S. Immigration and Customs Enforcement agency as a means of asserting control over the workers. For example, in one case where workers refused to work until they received their pay after not having been paid in several weeks, the employer responded by threatening to call immigration and declare that the workers had "abandoned" their work and were thus "illegal" workers. Such threats are common and are made possible by a system under which visas are issued solely for employment with the petitioning employer.

Even when employers do not overtly threaten deportation, workers live in constant fear that any bad act or complaint on their part will result in their being sent home or not being rehired. Fear of retaliation is a deeply rooted problem in guestworker programs. In 1964, the Mexican-American labor organizer and writer Ernesto Galarza found that despite the prevalence of workers' rights violations, only one in every 4,300 braceros complained.

In examining the H-2A program in North Carolina, Human Rights Watch found "widespread fear and evidence of blacklisting against workers who speak up about conditions, who seek assistance from Legal Services attorneys, or who become active in [the union]" Human Rights Watch also found evidence of a "campaign of intimidation" against workers to discourage any exercise of freedom of association by the workers. The U.S. Government Accountability Office (formerly the General Accounting Office) similarly reported in 1997 that H-2A workers "are unlikely to complain about worker protection violations, such as the three-quarters guarantee, fearing they will lose their jobs or will not be accepted by the employer or association for future employment."

The North Carolina Growers Association blacklist has been widely publicized. The 1997 blacklist, called the "1997 NCGA Ineligible for Rehire Report" consisted of more than 1,000 names of undesirable former guestworkers.

Fear of retaliation among workers is a constant concern — and one that is warranted. There is no question that many H-2 employers take full advantage of the power they hold over guestworkers.